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Greetings from the 3d annual meeting of the Association for Law, Property & Society (ALPS) at Georgetown Law Center in DC. Day 1 was great, with a lot of very interesting presentations. Most importantly (for me), I'm done, so I can relax and enjoy tomorrow's panels. My co-bloggers Jim Kelly and Ken Stahl still have to present tomorrow! Lots of other esteemed colleagues are here to discuss their current research, as is appropriate for what has quickly become the premier conference for academic property and land use law.

If you couldn't make it but would like to see what's going on at ALPS this year, you can check out the conference program at the link.

Law constrains our behavior, both individually and collectively. Legitimate law is that law that emerges from an inclusive process that identifies a governed community’s collectively imagined future for a place, while respecting the concerns of necessarily oppressed minority interests. In the land use context, we use comprehensive land-use plans to identify and communicate a vision that motivates binding behavioral changes — i.e., plans create visions that are sufficiently attractive to motivate communities to act in meaningful ways. To the extent law emerges from an inclusive and effective community plan, it is legitimated by that plan. But a planning process that relies exclusively on letting visions emerge from a community necessarily prefers those visions that provide individual economic benefits to specific participants — e.g., the growth machine. Public goods — even public goods that might represent the “best” vision for a particular community — are not championed, supported, or developed in the planning process. Combined with a general trend toward neoliberal governance, and the weak legal position of comprehensive plans, this inherent preference for the growth machine over the public good yields land-use ordinances that are unrelated to what might be the best vision for a community. The remedy is twofold. If planning’s purpose is to achieve public goods, planners must be willing to represent the unrepresented, potentially forcing particular visions on communities during the planning process rather than waiting for private-good-driven visions to emerge, at least initially. And the forced visions must be sufficiently specific so as to limit the universe of legal choices, and land-use consequences, that result. If the forced vision is useful — if it is a public good — the community will adopt it. Without the forced vision, it does not have that opportunity.

As coincidences go, I just had the pleasure of meeting Jerrold for the first time tonight at the ALPS reception, and then came back to jump on the interwebs and see that he has one of the most recently-posted land use papers on SSRN. So check it out.

On February 24, two years after oral argument, the Texas Supreme Court in Edwards Aquifer Authority v. Day, held that property owners own their groundwater in place and that a denial of the right to use groundwater could be considered a taking under the Texas Constitution. After being denied a permit to drill a well by the local water authority, two Texas landowners sued claiming that the denial of access to their groundwater constituted a compensable taking. The Supreme Court, in a lengthy opinion, analogized groundwater rights to the rights of oil and gas in Texas. Under Texas law, the rights to oil and gas (and now groundwater) are owned “in place,” meaning that the landowner does not have to first capture the substances before claiming a right to them.

The Court remanded the case to determine whether a regulatory taking had occurred under the Penn Central factors established by the U.S. Supreme Court in 1978. Under this fact-intensive test, a court looks to the economic impact of the regulation, the interference with investment-backed expectations, and the character of the government action. The Texas Supreme Court acknowledged some of the difficulties in applying the Penn Central test to groundwater. Unlike oil and gas, groundwater can be replenished, and many beneficial uses of groundwater do not involve sales. The Court’s holding will inevitably lead to a spate of litigation in Texas over which government actions regarding groundwater constitute a compensable regulatory taking and how much to compensate the landowner. There is a fear that the threat of litigation will lead resource-strapped water authorities to less vigorously regulate the use of groundwater.

Will this ruling have any impact outside of Texas? Texas is one of the few states that maintains the absolute capture rule for groundwater. Basically, a landowner is entitled to all the water that she can pump out of the ground, regardless of the effect on her neighbor’s groundwater supply. (There is a narrow exception for malicious or willfully wasteful pumping). Most states have a reasonable use rule, a permitting rule, or a mixture of the two. Thus, a landowner in those jurisdictions may only pump out water to a reasonable extent.

There seems to be a logical relationship between an absolute capture rule and in place ownership rule. If a property owner is entitled to all the water that she can capture, then it makes sense to say that she has a potential interest in any uncaptured water. But if there are already restrictions on how much water she can pump, then she arguably has much less of an interest in the uncaptured groundwater. Thus, it seems reasonable to think that a jurisdiction that does not maintain an absolute capture will be less likely to implement an owned in place rule for groundwater.

On the other hand, the contrary argument can be made, i.e., the absolute capture and owned in place rules are fundamentally in tension. If property owner has no action against her neighbor for depleting the groundwater supply, how can it be said that the owner has an enforceable property right to the uncaptured water under her own land? For a further exposition of this argument, see Susana Elena Canseco, Landowners' Rights in Texas Groundwater: How and Why Texas Courts Should Determine Landowners Do Not Own Groundwater in Place, 60 Baylor L. Rev. 491, 517--19 (2008).

Regardless of the impact outside of Texas, the case, at the very least, will keep Texas courts and water authorities occupied for years for to come.

In 1984, Professor David Callies wrote Regulating Paradise to describe the regulatory scheme in Hawai’i. In 2010, he followed up that book with Regulating Paradise: Land Use Controls in Hawai’i to reexamine the issues as they have developed over the last 25-plus years: housing affordability, the subjects of development agreements, condemnation, defining open space and agricultural lands, takings, cultural sensitivity, environmental assessment, the prevalence of covenanted communities, and redevelopment.

This essay is a review of Professor Callies work which is a must read for anyone involved in land use in Hawaii. What emerges from his work are lingering questions about whether the regulatory scheme has over protected paradise.

Hey everyone, it's February 29th, and that doesn't happen every year. So Happy Leap Day!

Some of you who follow the blog might recall that we like to do a holiday post now and then about the land use angles of the tradition-- like on Christmas, Thanksgiving, Halloween, Columbus Day, St. Patrick's Day, Veterans Day, Martin Luther King Day, and even Groundhog Day. Today is the first chance I've had since relaunching the blog in 2009 to consider Leap Day, so it's time to add Feb. 29 to the list. I must admit, however, that coming up with a land use angle for Feb. 29 looked like a bit of a challenge. But I take pride in my skill at the game my students call "What Can't Festa Turn into a Land Use Story," so here goes:

First, it's an Irish tradition (supposedly), going back to the times of St. Patrick and St. Bridget, that on the quadrennial occurrence of Leap Day, the women get to make marriage proposals to the men (the legend is probably the progenitor of Sadie Hawkins Day). In a traditional feudal society with a land-based economy and social structure, with primogeniture and entailments controlling the land, this social inversion could have a significant effect on how feudal power and family wealth get organized. If it ever actually happened, that is . . . I'm skeptical, but the legend seems to have enough purchase to back the 2010 Amy Adams movie Leap Year.

A second land use tie-in is related to the appellation "Leap" Day/Year. LEAP is also an acronym that stands for "Land-use Effects on Amphibian Populations." It's a multi-regional collaboration sponsored by the National Science Foundation. Academic research programs were established at Missouri, Maine, and South Carolina. And lest you think that I'm stretching here, many organizations today are using the occasion of Leap Day to celebrate Amphibians. Amphibian Ark has rolled out an international campaign for Leap Day:

To coincide with Leap Day (February 29th) 2012, Amphibian Ark is launching a new international event, Leaping Ahead of Extinction: A celebration of good news for amphibians in 2012.

The event’s been timed to coincide with Leap Day (29th February) 2012, and will promote the great successes in the conservation of amphibians in captivity and in the wild. The focus will be on institutions that are managing amphibian rescue or supplementationprograms, recommended either during an AArk conservation needs assessment, or by national governments or field experts.

Manyzoos, wildlife and conservation organizations, and even Disney are also getting into the spirit with Leap Day events for amphibians. Hopefully they won't get too jumpy in Calaveras County.

Once again, a special day with a land use angle! Kind wishes to our amphibian friends, especially if a princess proposes to one.

Matt Festa

UPDATE: The "Leap Day" observance is broader than I had thought, and implicitly with the amphibian connection too-- I'm getting emails imploring me to take advantage of the Leap Day discounts from the excellent LeapFrog brand of learning toys that my son enjoys. You know you've arrived as an American holiday when businessess try to commemorate it by selling stuff. Like the old "life, liberty, and no money down!" type of sales promotions.

UPDATE 2: For yet another land use angle, DOT Secretary Ray LaHood tells us that we should "Leap Into Safety" today by investigating our states' pipeline profiles.

The Religious Land Use and Institutionalized Persons Act (RLUIPA) protects religious landowners from the imposition, through a land use regulation, of a substantial burden on religious exercise, absent a compelling interest. For purposes of RLUIPA, a religious landowner may be a person, or, as is more likely, an assembly or institution. This Article contends that courts and commentators have failed to consider the implications of the institutional identity of the vast majority of land use claimants under RLUIPA. As a result, courts frequently focus inappropriately on the substantial burden claims of individual adherents, rather than institutional claimants. The concept of institutional free exercise, as articulated in case law and legal scholarship, provides a framework for distinguishing between the religious exercise and substantial burdens of religious institutions and individual adherents and can aid in clarifying substantial burden doctrine. In addition, the treatment of religious and non-profit institutions in comparable land use contexts, particularly hardship claims under landmark laws, can help shape the evaluation of institutional substantial burden claims.

I propose that courts should distinguish between the substantial burden claims of “existing institutions,” those that have made use of a particular property for a period of time and seek to alter or expand their use, and “new institutions,” those seeking a parcel of land for their first location or seeking to obtain and use a new parcel of land. Existing institutions should receive protection akin to that provided by courts to existing uses under the “natural expansion doctrine.” Given their bonds with a specific location and community, certain land use restrictions will impose a substantial burden on their institutional religious exercise. In contrast, new institutions cannot claim the same degree of burden when denied the use of a particular parcel and their claims are adequately protected by other provisions of RLUIPA. Both new and existing institutions may have claims when the land use process itself, rather than the simple denial of a desired use, imposes a substantial burden, but those claims should be addressed through RLUIPA’s other provisions.

Before 2001, state and federal courts did not agree on the extent to which a property owner’s regulatory takings claim should be weakened by the existence of legal restrictions on her use of the property at the time she acquired it. The Palazzolo Court addressed this doctrinal confusion but did not completely resolve it, offering six opinions that partially contradict each other. Some of this discord has persisted, with Palazzolo already cited in nearly five hundred judicial opinions, and not always consistently.

This Article examines the impact Palazzolo has had on state and lower federal courts. After reviewing the law before Palazzolo and the Supreme Court’s decision in that case, the Article offers suggestions as to how courts ought to interpret the contradictory opinions in Palazzolo. More specifically, cases arising at different points in the ripening process should be treated differently, and only a small subset of takings claims should benefit from Palazzolo’s relaxation of the notice rule.

Next the Article assesses the evidence, in an effort to determine whether courts interpreting Palazzolo have actually been following these suggestions. First, it examines the small number of claims in which an owner that probably would have lost before 2001 prevailed. It then compares these results with the far more numerous cases in which an owner that probably would have lost before 2001 still lost even after that decision.

The Article closes by offering a more generalized assessment of the effects of Palazzolo. It concludes that nearly all of the courts to cite Palazzolo have heeded its requirements, but only a few cases have turned out differently than they would have before 2001. The Court’s ripeness rules dictate that few landowners should benefit from the holding in Palazzolo, and only a small number actually do benefit. Lower courts understand Palazzolo, they have been applying it correctly, and they should continue to do what they have been doing.

The possibility of Walmart coming to Athens, GA has now made the mainstream (albiet on-line) media with this story in Salon:

The Athens, Ga., soul-food joint Weaver D’s has barely changed in the 20 years since its slogan, “Automatic for the People,” supplied the name of a groundbreaking R.E.M. album.

You could say the same about Athens itself. After businesses fled in the ’80s, downtown Athens rebounded as an alt-rock mecca that spawned the soundtrack of Generation X. R.E.M., the B-52s, Widespread Panic and thousands of other musicians and artists helped create what is, in many ways, today a dream city: a mixed-use, walkable urban core filled with small businesses, plenty of green space — and a music scene that rivals that of cities 10 times its size.

Cue “The End of the World as We Know It.” A multi-building mall-like shopping complex, likely to include the dreaded Walmart, has set its sights on downtown Athens. Renderings by the Atlanta-based developer Selig Enterprises show a bricked concourse surrounded by large-scale retail, including a 94,000-square-foot superstore, topped with apartments. It also includes three restaurants — two of which are over 10,000 square feet — and 1,150 parking spaces. This is new for downtown Athens, which unlike most college towns, has largely kept chains away.

“There’s an Athens style,” says Willow Meyer, a 37-year-old lawyer who moved here with her husband [UGA law prof Tim Meyer] two years ago, “and if you just import this kind of ‘Anywhere, USA’ development, the city loses something.”

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Editors

Craig Anthony Arnold

Boehl Chair in Property and Land Use Professor of Law
Affiliated Professor of Urban Planning
Ph.D. Faculty in Urban and Public Affairs
Chair of the Center for Land Use and Environmental Responsibility,
University of Louisville